Fred McBurnett v. State

Opinion issued August 9, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00183-CR
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FRED MCBURNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1220500
MEMORANDUM OPINION
A jury convicted appellant Fred McBurnett for noncompliance with the
sex-offender registration requirements.1 The trial court found one prior felony
1
See TEX. CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West 2006) (stating that
person required to annually verify their sex-offender registration information
enhancement to be true and assessed his punishment at twenty years’ confinement.
McBurnett’s sole point on appeal is that because the State failed to prove that his
place of residence was within the Houston city limits, the evidence was insufficient
to prove that the Houston Police Department was his primary registration
authority. We affirm.
Background
McBurnett was indicted for, and ultimately convicted of, failing to comply
with the Code of Criminal Procedure’s sex-offender registration requirements.
Specifically, the State alleged that McBurnett failed to comply with article
62.058(a) which states, in pertinent part,
A person subject to registration under [chapter 62] who is not
subject to the 90 day reporting requirement described by this
subsection shall report to the local law enforcement authority
designated as the person’s primary registration authority by the
department once each year not earlier than the 30th day before and
not later than the 30th day after the anniversary of the person’s date
of birth to verify the information in the registration form maintained
by the authority for that person.
TEX. CODE CRIM. PROC. ANN. art. 62.058(a) (West 2006).
Originally convicted of a sex offense in 1991, McBurnett was subject to
chapter 62 and annual verification of his registration information. Houston Police
Department (HPD) Sergeant Glenn Shepherd, custodian of records for the offender
pursuant to article 62.058 commits third degree felony if that person “is required
to register and fails to comply with any requirement of [chapter 62]”).
2
registration unit, testified that McBurnett initially registered with HPD as a
Houston resident on August 23, 2004, and that the Department of Public Safety
designated HPD as his primary registration authority. 2 Shepherd further testified
that McBurnett visited the department on August 18, 2008, completed a change of
address form listing his new address as 1414 Austin St. #1 Houston, Texas, and
signed an acknowledgment that his next annual registration date was April 28,
2009—his birthday. When McBurnett failed to timely report to HPD,3 and
Shepherd determined that McBurnett had not registered elsewhere, a warrant was
issued for his arrest.
Standard of Review
In determining the legally sufficiency of evidence to support a conviction, a
reviewing court must consider all the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, any rational factfinder could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99
S. Ct. 2781, 2789 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2
See TEX. CODE CRIM. PROC. ANN. art. 62.004(a) (West Supp. 2011) (stating
Department of Public Safety “shall determine which local law enforcement
authority serves as the person’s primary registration authority based on the
municipality or county in which the person resides”).
3
Shepherd testified that HPD’s records for the sixty-one-day time period spanning
the thirty days before and after McBurnett’s birthday (March 28, 2009 to June 1,
2009) reflect no visits or appointments by McBurnett.
3
2011). This standard gives full play to the responsibility of the factfinder to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Gear, 340 S.W.3d at 746 (quoting
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).
Analysis
McBurnett argues that because the State failed to prove that he was residing
within the Houston city limits in 2009, the evidence was insufficient to prove that
HPD was his primary registration authority—an element of the offense—and cites
Simpkins v. State, 300 S.W.3d 860 (Tex. App.—Texarkana 2009, no pet.).
Simpkins, however, is distinguishable.
Simpkins, who had lived elsewhere, moved to Longview, Gregg County,
Texas and was subsequently charged with failure to register with the Gregg County
Sheriff, in violation of article 62.051(a).4 Simpkins argued that the evidence was
insufficient to show that his residence was in the unincorporated area of Gregg
County, rather than within the City of Longview. The court of appeals agreed and
reversed and rendered a judgment of acquittal.
Unlike the present case, the State in Simpkins had to establish the law
enforcement entity with which Simpkins was required to register, and, to do so, it
4
TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (West Supp. 2011) (requiring person
with reportable conviction to register, or verify registration with “local law
enforcement authority” in any county where person resides or intends to reside for
more than seven days).
4
was required to provide proof of Simpkins’s residence. See Simpkins, 300 S.W.3d
at 863 (stating defendant’s residence was element of hypothetically correct jury
charge in that case because identity of “local law enforcement” authority varied
depending upon situs of defendant’s residence or intended residence); see also
TEX. CODE CRIM. PROC. ANN. art. 62.001(2) (West Supp. 2011) (defining “local
law enforcement authority”). Not only is such pinpoint specificity not required in
the present case, but the uncontroverted testimony was that DPS had determined
that McBurnett’s primary registration authority was HPD. See TEX. CODE CRIM.
PROC. ANN. art. 62.004(a) (West Supp. 2011) (stating Department of Public Safety
“shall determine which local law enforcement authority serves as the person’s
primary registration authority based on the municipality or county in which the
person resides”). There was no such testimony in Simpkins.5
The hypothetically correct jury charge in the present case required proof,
inter alia, that McBurnett was a person with a reportable conviction subject to
registration under the sex-offender registration program who failed to report to the
local law enforcement agency designated as his primary registration authority,
(HPD), during the thirty days before his birth date or the thirty days after, to verify
his registration information on the form maintained for him by that law
5
This is presumably because Simpkins had just moved to a new county and failed
to register his address, thus DPS never had an opportunity to designate his primary
registration authority in Gregg County under chapter 62’s statutory scheme.
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enforcement authority. The hypothetically correct jury charge required no proof of
his residence.
The State offered uncontroverted testimony and evidence that McBurnett
was a convicted sex-offender who was required to register under chapter 62 and
that he failed to comply with one of the requirements of that chapter. See TEX.
CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West 2006). Specifically, the State
demonstrated that the “local law enforcement authority” designated as McBurnett’s
primary registration authority by DPS was HPD and that McBurnett did not report
to HPD within 30 days before or after his birthday in 2009 to verify his
sex-offender registration information. See TEX. CODE CRIM. PROC. ANN. art.
62.058(a).
Considering all record evidence in the light most favorable to the verdict, we
hold that a jury could rationally have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
318–19, 99 S. Ct. at 2789; Gear, 340 S.W.3d at 746.
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Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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